In the recently reported case of Connolly v. Cowie, 2012 BCSC 242, Madame Justice Butler awarded $50,000 in non-pecuniary damages (pain & suffering) after a 3 day trial to a plaintiff injured in a motor vehicle accident in January 2009. The accident occurred when her car was rear ended by the defendant’s car. The plaintiff was 35 years old at the time of the accident and sustained a strain in her lower back. She developed chronic pain in her back over time. With respect to the plaintiff’s injuries and the award, Justice Butler said the following:

[41] … Ms. Connolly suffered a significant low back strain as a result of the accident. The accident has caused injury to the myofascial tissues in her left sacroiliac region. The injury has not resolved in spite of her aggressive attempts to continue with exercise and chiropractic treatment and some physiotherapy. She now has chronic pain which is not disabling, but does restrict the type and extent of activities and exercises she can perform. She is still able to do most household tasks, but it is likely she will continue to experience pain with activities. It is unlikely that the pain symptoms will resolve.

[45] Here, Ms. Connolly is unable to continue with long distance running. She does not take medications like Ms. Dutchak, but has persisted with more restricted activities. In the past, she thrived on the combination of exercise and camaraderie with a group of fellow competitors. Her inability to continue with that is a significant loss to her. She has continued to exercise and is now focusing on cycling as a replacement for her previous passion, but has had to give up her dream of working as a fitness instructor. She put much thought and several years of work into attempting to develop a skill that would provide her with income and help fulfil her desire to do strenuous exercise with like-minded people. She is no longer able to do that and this is a significant loss.

[46] In addition to these significant losses, she has to put up with continuing pain and it is likely this will not abate in the future…

Loss of Future Earning Capacity:

Justice Butler also awarded $15,000 to the plaintiff for a loss of future earning capacity. In the years preceding and following the accident, the plaintiff had earned very little. The court noted that the prospect of the plaintiff living with some level of ongoing pain, even if manageable, had a real and substantial possibility of rendering the plaintiff less able to earn income, especially because the plaintiff’s employment options were predominantly physical in nature. In making the award the court said the following:

[54]Quantifying the loss is difficult. Ms. Connolly does not have a history of earning significant amounts of income.I conclude that she will continue to be

the primary caregiver and homemaker for her family and this will preclude her from working extensively outside of the home in the near future. While there may be jobs available to her that would provide higher levels of income than she could have earned as a fitness instructor, such work may not fit into her schedule as readily as that work would have. As a result, she may not be able to take full advantage of those opportunities. The loss of work within a flexible schedule represents a real loss to Ms. Connolly and forms the primary basis for this claim. When I consider all of these factors, I conclude that a reasonable assessment of her loss of future earning capacity is $15,000. I appreciate that this is not a significant sum. It does, however, represent three times her highest level of earnings in the years after the birth of her second child. As the children get older and she has more flexibility to work outside of the home, I conclude that the chance of an ongoing loss diminishes.